British Library Recommends Harmonizing Digital, Non-Digital IP Law

Ars Technica has the story of a new “Intellectual Property Manifesto” issued yesterday by the British Library. The Library recommends a number of changes to UK intellectual property law, the general thrust of which would be to diminish the differences between the scope of IP rights that authors enjoy in the digital and analog domains. As in the United States, European copyright law grants a number of additional legal rights to copyright owners whose works are issued in digital form above and beyond the ordinary copyright rights to prevent unauthorized duplication and the like. The British Library’s manifesto (available here and worth a read; it’s not lengthy) suggests curtailing those additional rights, which would shrink digital IP law back to something more resembling the traditional historical contours of copyright doctrine. The Library’s proposal also would make clear that “fair dealing” privileges (analogous to what we in the U.S. would categorize as “fair uses”) extend equally to digital and non-digital works alike. Finally, the “manifesto” also offers recommendations on dealing with copyright duration and with orphan works, which (as Bill mentioned here and here) has also been the subject of a great deal of attention here in the U.S. recently.

Ars Technica’s coverage of the manifesto is pretty good, although I think they misunderstood one fairly technical point. They write:

Overall, the proposals are well-balanced, though parties on both sides of the debate will find bits to dislike. Copyright holders will dislike the restrictions on contracts and DRM, while those in favor of “open access” may be disappointed that the British Library advocates a “life + 70 years” copyright term.

A look at section 6 of the British Library’s proposal, however, indicates that the Library’s call for a copyright term of life-plus-70-years is limited to unpublished works. That is potentially a shorter, not longer, term than is presently provided for such works under U.S. law. In this country, Section 303 of the Copyright Act of 1976 gave unpublished works created before January 1, 1978 a minimum copyright term of 25 years after the enactment of the statute (through the end of 2002), with the further proviso that copyright would subsist through the end of the year 2047 if the work was published within that initial 25-year window. In my fall class, we recently discussed the example of Louisa May Alcott‘s long-unpublished novel A Long Fatal Love Chase, penned in 1866 but not published until 1995. If the British Library’s proposed copyright term for unpublished works was in effect, A Long Fatal Love Chase would have fallen into the public domain in 1958, 70 years after Alcott’s death; as things stand, the work will remain in copyright in this country until 2047.

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